In the Matter of the Marriage of S.W. and M.W.

Olathe, Kansas divorce lawyers represented the Petitioner and the Respondent in a marriage dissolution action.

Following a contested trial in a divorce action, the district court entered a final journal entry and decree of divorce in November 2021. Relevant to this appeal, the court ordered the parties to share joint legal custody of their four minor children with Wife having primary residential custody. A parenting plan was established. The district court also ordered Husband to pay child support of around $1,600 per month, which incorporated the fact that Wife paid "$485 per month for preschool/work-related childcare expenses." Unfortunately, neither the parenting plan nor the child support worksheet appear in the record on appeal.



Wife petitions for a protection from abuse order against Husband.



Six months after the divorce decree was filed, Wife filed a PFA petition against Husband on behalf of the parties' minor children. Wife had received a call from someone at the Kansas Department for Children and Families (DCF) describing a report from a neutral witness who was driving by Husband's house and saw Husband "holding our son . . . by his throat up against the outside of his house, yelling at him." In the section for additional relief requested, Wife checked the boxes for "child support," "attorney's fees . . . and costs," and "counseling for Defendant." Although the PFA case was a separate case filing from the divorce case, the petition referenced the parties' divorce case.



That same day, the district court entered a temporary ex parte order in the PFA case granting Wife sole legal custody of the minor children and prohibiting Husband from having parenting time or contacting the minor children. The court also set the matter



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for a hearing a week later. Both parties appeared at the hearing. The court found good cause to continue the temporary order and set a trial date for August 2022.



The trial on Wife's PFA petition occurred as scheduled in August. Wife testified she was seeking reimbursement for childcare expenses, which were roughly $900 per week for all four children. She argued that these costs were incurred solely as a result of her husband having limited supervised visitation while the temporary PFA orders were in place. Mother asserted that she had to arrange summer childcare that otherwise would not have been necessary. During closing arguments, Wife's attorney stated: "My client's spent $10,000 on daycare this summer that she would not have had to have incurred- incur. And that's not contemplated in the child support worksheet in the divorce case."



The district court ultimately denied Wife's PFA petition after finding a lack of a preponderance of the evidence to support the allegations of abuse in the petition. The court did make note that Wife's filing of the petition was reasonable based on what she had been told by DCF personnel, although at trial it was discovered that the abuse alleged by DCF-not Mother-had been exaggerated.



The district court orders Husband to reimburse Wife in the divorce case.



Right after the PFA case was dismissed, the district court judge stated that he planned to enter orders regarding the "underlying divorce case." First, as to childcare expenses requested in the PFA case, the district court did not place fault with either parent on why the summer childcare expenses were necessary. Instead, the district court simply found that they had been incurred and must be shared proportionally based on income levels reported on their last child support worksheet.



The district court added that "[s]upervised parenting time fees . . . will also be reapportioned in proportion to incomes." Next, the court reinstated Husband's parenting time from the divorce case. And finally, the district court ordered a mental health assessment and possible therapy based on the assessments for all of them, "kids and parents" "in the underlying divorce case." Other than the summer childcare expenses, none of the other orders are challenged here.



The same day, the court filed written findings in the divorce case reflecting its oral rulings from the bench. The district court entered a "Temporary Order" in the divorce case "to transition the children back to the original parenting plan in a reasonable manner." Most relevant to this appeal, the court stated: "The summer daycare costs were unavoidable. [Husband] will reimburse [Wife] for his proportionate share of the daycare incurred (in accordance with the last child support worksheet on file) from May 14, 2022, through September 7, 2022." The order also incorporated the therapy order and the changes to the parenting plan, as well as required Husband to reimburse Wife "an amount necessary to cause the final sharing of [supervised parenting time] costs to be in proportion to incomes in accordance with the last child support worksheet on file."



This raised a concern, at least for Husband, that the district court had in fact amended the custody agreement in the divorce case without an explicit finding that modification was necessary and without updated income information. Although also not in the record on appeal, the parties revealed during oral argument that Husband actually had a motion to modify child support on file, which he withdrew at some point while this case was pending. Despite this, he argues that the court should have required new income worksheets be filed to determine whether the roughly 53/47 split established was still appropriate.



So the next month, Husband raised the issue with the district court and moved to amend the temporary order "pursuant to K.S.A. [2023 Supp.] 60-259," asking the court to:



"a. Set-aside the determination that a reintegration period was deemed necessary and enter an order for substantial make-up time for the [Husband].



"b. Set-aside its order related to payment of daycare costs.



"c. Amend its order to provide for make-up time for the children and [Husband] related to parenting time with the [Husband]."



Husband specifically argued that the order requiring him to pay daycare costs should be set aside because the current child support worksheet required Wife to pay daycare expenses and Wife had not filed any requests to modify child support.



The district court held a hearing on Husband's motion on January 9, 2023. Husband's attorney argued the district court lacked authority to sua sponte order a change in child support in the divorce case following the PFA hearing, also asserting there was insufficient evidence presented to establish the amount of daycare costs. Wife disagreed, explaining that she sent Husband's attorney a copy of the current child support worksheet and a complete breakdown of the daycare costs, which amounted to "$11,444.60 for the four children to be in daycare. 53.5 percent of that cost which was what was attributed to [Husband], would be $6,122.86." Again, these documents do not appear in the record on appeal.

Appeal dismissed